Interesting Editorial Revisions in Matter of Skirball Cultural Center


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Revised May 18th 2012.

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Interesting Editorial Revisions in Matter of Skirball Cultural Center

  1. 1. Interesting Editorial Revisions in Matter of Skirball Cultural Center By Joseph P. Whalen (May 16, 2012)When the administrative decision was revised in order to make it into a Precedent,a few key changes were made. Let’s have a closer look at them. The obvious majorchange was the addition of an enumerated five prong holding. That holding is: (1) Congress did not define the term “culturally unique,” as used in section 101(a)(15)(P)(iii) of the Immigration and Nationality Act, 8U.S.C. § 1101(a)(15)(P)(iii) (2006), leaving reasonable construction of that term to the expertise of the agency charged with adjudicating P-3 nonimmigrant visa petitions. (2) The term “culturally unique,” as defined at 8 C.F.R. § 214.2(p)(3) (2012), is not limited to traditional art forms, but may include artistic expression that is deemed to be a hybrid or fusion of more than one culture or region. (3) As the regulatory definition provides for the cultural expression of a particular “group of persons,” the definition may apply to beneficiaries whose unique artistic expression crosses regional, ethnic, or other boundaries. (4) The regulatory definition of “culturally unique” calls for a case-by-case factual determination. (5) The petitioner bears the burden of establishing by a preponderance of the evidence that the beneficiaries’ artistic expression, while drawing from diverse influences, is unique to an identifiable group of persons with a distinct culture; it is the weight and quality of evidence that establishes whether or not the artistic expression is “culturally unique.”Most of the points in these holdings were present in the original administrativedecision. The first prong was refined through use of editorial revisions. In theunderlying AAO non-precedent, reference was originally made to: “leaving that determination to the expertise of the agency charged with the enforcement of the nations immigration laws” [Emphasis added.]Rather than to: “leaving construction of that term to the expertise of the agency charged with adjudicating P-3 nonimmigrant visa petitions”. [Emphasis added.]To me, the significance of that change is that it lends support the assertion thatUSCIS is trying to transform its image and turn away from the old INS lawenforcement mentality. USCIS is transitioning into its altered and recentlystatutorily defined role as a benefits granting agency administering civil lawprovisions. USCIS is now much further away from the old contradictory role as a Page 1 of 5
  2. 2. “federal immigration police force also saddled with deciding on certainimmigration benefits” which was the reality of Legacy INS.To be fair, INS had recognized that dichotomy and was in the process of separatingits Benefits and Enforcement functions prior to 9/11. It can be argued that INS’efforts in this regard made the rapid separation of major functions a little easier instanding up DHS initially. Even with all its multiple growing pains, making DHSbecome a reality would have been an even more difficult task had steps not alreadybeen taken in advance of the urgent demand and need for change.The second prong of Skirball acknowledges that, as described in the rewordedanalysis section, “a distinct artistic expression [can be] derived from a hybrid or fusion of artistic styles or traditions from more than one culture or region”. [Emphasis added.]Originally, the concept was described as: “an artistic expression that is deemed to be a hybrid or fusion or more than one culture or region”. [Emphasis added.]This is further supported by the addition of a discussion on “culture” as shown herein pertinent part: “While a style of artistic expression must be exclusive to an identifiable people or territory to qualify under the regulations, the idea of “culture” is not static and must allow for adaptation or transformation over time and across geographic boundaries. The term “group of persons” gives the regulatory definition a great deal of flexibility and allows for the emergence of distinct subcultures. Furthermore, the nature of the regulatory definition of “culturally unique” requires USCIS to make a case-by-case factual determination based on the agency’s expertise and discretion.” At p. 805 [Emphasis added.]I like that sentiment and it goes hand in hand with this except from my AmicusBrief on the Final Merits Determination 1 as follows: “...Achievements in any given area of endeavor, and how we as a society view and value such achievements changes in unpredictable ways so, the evidence is fluid. By “fluid” I mean that the evidence categories are dynamic and subject to substantial change over time. If the evidence of great achievement were static and unchanging then it could be more easily spelled out and codified in a list. The best one can hope to list are broad categories which may themselves change over time and are subject to reinterpretations.” At p. 21 Amicus Brief on Final Merits Determination (Brief 5) (1KB PDF) posted on USCIS website on May 10, 2012. Page 2 of 5
  3. 3. The third prong speaks to the regulatory definition of “culturally unique” andsingles out that portion which applies to the beneficiaries, namely as one of the“other group of persons”.8 C.F.R. § 214.2(p)(3) (2012) provides: “Culturally unique means a style of artistic expression, methodology, or medium which is unique to a particular country, nation, society, class, ethnicity, religion, tribe, or other group of persons.” [Emphasis added.]The AAO included this passage in its decision: “... [T]he petitioner described the beneficiary group and its musical style as follows: “This ensemble is composed of seven musicians from Argentina, who have been performing together between 4 to 8 years and whose music blends klezmer (Jewish music of Eastern Europe) with [L]atin and South American influences.” At pp 801-802While this AAO Precedent is specifically discussing a regulatory definition as itrelates to “... a particular “group of persons,” whose unique artistic expressioncrosses regional, ethnic, or other boundaries”, this concept could proveinformative to future considerations in the asylum context.The fourth prong carries the idea further by emphasizing that this “calls for a case-by-case factual determination.” The AAO emphasizes that “the petitioner bearsthe burden of establishing by a preponderance of the evidence that thebeneficiaries’ artistic expression, while drawing from diverse influences, is uniqueto an identifiable group of persons with a distinct culture.” At p. 805 [Emphasesadded.]The AAO instructs through Skirball that: “... [t]o determine whether the beneficiaries’ artistic expression is unique, the director must examine each piece of evidence for relevance, probative value, and credibility, both individually and within the context of the entire record. Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010).” At p. 805 [Emphasis added.]If one were to substitute “a particular social group” for “artistic expression” thenthe rest of the above sentence and the associated passages would help guideasylum-seekers and practitioners in better preparation and presentation of theircases. Asylum is dependent on meeting the definition of “refugee” as shownbelow.INA § 101(a) [8 USC § 1101(a)] * * * * * (42) The term "refugee" means: Page 3 of 5
  4. 4. * * * * * (A) any person who is outside any country of such persons nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion, or .....The Sixth Circuit recently reviewed a case2 where the alien sought asylum as amember of a “particular social group” but failed to identify what group that wasand the Asylum Officer did not clarify it either (at least it was not in the record ofproceeding). Given that ultimately the group was identified in linguistic terms, Ihave to wonder if that itself posed a problem or was an issue that influenced thedevelopment of the record? “An Asylum Officer interviewed Bartolome on September 6, 2006.FN2 The Asylum Officer stated in his assessment that Bartolome requested asylum because he feared persecution in Guatemala on account of his membership in a particular social group. The Asylum Officer noted that Bartolome did not claim membership to a particular social group 3 nor did he allege any mistreatment by the guerrillas. Based on this information, the Asylum Officer found Bartolome ineligible for asylum and referred the matter to the immigration judge (“IJ”). DHS denied Petitioners’ applications, and on September 20, 2006, initiated removal proceedings. At the March 27, 2007 removal hearing, Petitioners admitted to the allegations in the Notice to Appear, conceded removal, and renewed their applications for asylum and withholding of removal.” At p. 2 _________________ Footnotes as in Original: FN1 The IJ determined that Bartolome was ineligible for NACARA relief because he untimely submitted his application. According to the IJ, Bartolome needed to submit his application on or before December 31, 1991. FN2 The record is void of any explanation as to why the asylum office did not interview Bartolome upon his initial application for asylum but instead referred his application to the immigration court in 2006.2 At some point, that “particular social group” was identified as the Quiche-speaking indigenousgroup. Petitioners claimed to be members of the Quiche tribe, an indigenous ethnic group inGuatemala, however, that membership was not put forth as a “particular social group” up-front. Page 4 of 5
  5. 5. With regard to the factors emphasized in Matter of Caron Int’l, Inc., 19 I&N Dec.791, 795 (Comm’r 1988), the AAO noted in Skirball that: “In the present matter, the director did not question the credentials of the experts, take issue with their knowledge of the group’s musical skills, or otherwise find reason to doubt the veracity of their testimony. The AAO finds the uncontroverted testimony to be reliable, relevant, and probative as to the specific facts in issue. Accordingly, the expert testimony satisfies the evidentiary requirement at 8 C.F.R. § 214.2(p)(6)(ii)(A).” At p. 806The forgoing is rounded out with the substance of the fifth prong in regard to therelative “weight and quality of evidence” offered in support of the petition. I cannotfind fault with that reasoning, in fact, I fully support it as is evident from thisadditional passage from page 6 of my Amicus Brief (mentioned above) in which Isuggested that since..... “... It is the position of USCIS to grant national interest waivers on a case by case basis as demonstrated by the evidence in the individual record, rather than to establish blanket waivers for entire fields of specialization. The same rationale [should] be applied to the determination of eligibility for visa classification as an alien of extraordinary ability.” [Emphasis in original.]The above passage was heavily influenced by reasoning and a particular sentencein Matter of NY State Dept of Trans, 22 I&N Dec. 215 (AAO 1998) (NYSDOT): “It is the position of the Service to grant national interest waivers on a case by case basis, rather than to establish blanket waivers for entire fields of specialization.” At p. 217Matter of Skirball Cultural Center is well worth a deep reading and perhapsmultiple re-readings! That’s my two-cents, for now. Page 5 of 5